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Iman Rappetti – PowerFM Host:
…Alright let’s talk now in our legal feature about immigration law, refugee and citizenship law, and I think it’s an important topic given what we’ve all seen over the last couple of weeks. So we want to know what there is in law regarding these different categories, how it affects South Africans, and also those of us who want to visit other parts of the world. What are the rules of entering around the planet? So there are various categories in this discussion about immigration law. And so I think the person best to speak about it is Craig Smith who is the principal attorney at Craig Smith and Associates and they focus on immigration law specifically. So Craig, good morning to you and welcome to Power Talk.

Craig Smith – Immigration Lawyer:
Yes good morning Iman and I’m happy to be here.

Iman Rappetti – PowerFM Host:
Alright so maybe just, for those of us who are wondering; how broad does the immigration and the migration category spread? Perhaps give us a nice little neat overview.

Craig Smith – Immigration Lawyer:
Okay. Well immigration is, our Immigration Act which was amended last year, 25th of May, 2014, effectively covers all foreigners entering, continuing to stay and depart from the Republic. So effectively the Department of Home Affairs, which is the administration tasked by government to oversee immigration will set in place the policy, which in turn becomes passed in parliament. And so we have our Immigration Act, and then we have our immigration regulations, which are enabling, which is an enabling laws or regulations or subordinate legislation which the Minister directly passes, or promulgates through the government gazette. And together those two pieces of law instrumental in regulating the foreigners’ arrival and continued stay and departure. In those two pieces of law they were obviously set up a series of category for which an applicant much qualify…

Iman Rappetti – PowerFM Host:
And there are four main ones, Craig if I understand, so there’s permanent South African residents’ permits, temporary South African permits, immigration legal services and then immigration litigation services which covers the other categories I imagine.

Craig Smith – Immigration Lawyer:
Well in essence, the Immigration Act is almost divided into three main areas. That is temporary residents, those are for foreigners wishing to enter on a stay of up to five years, and that would generally cover the life of study, the work visas, retirement visas, exchange visas and the like. These are generally visas that go up to five years.

Then there would be permanent residents, and there there would be a series of categories, some are duplicated from the temporary residents like with diamond category, you can even get permanent residence through asylum, you can get it through running your own business, you can get it through having a work permit or visa…

Iman Rappetti – PowerFM Host:
And marriage, and marriage to a South African.

Craig Smith – Immigration Lawyer:
Correct, that’s a very important category, that’s what we call a section 26b category, which is that if you’re married to a South African or in a permanent relationship as proscribed, assuming you meet the checklist for five years, you will then qualify for permanent residence. And last but not least there are the aspects of enforcement, an effort where the department authorizes immigration officers who are trained in the field of enforcement of the Immigration Act. And those principally are three areas of regulating immigration affairs within South Africa.

Iman Rappetti – PowerFM Host:
Is it fairly complicated to navigate these different categories? I mean one imagines that for work study and exchange would be a fairly straight forward process. When does it start to get complicated?

Craig Smith – Immigration Lawyer:
Well, Iman that’s a very good question. I mean it started to get complicated when the laws changed, and principally because new applicants would have to apply from their home country. So you would have foreign people who have the necessary wherewithal to qualify, be it business, be it the skill in terms of critical skills et cetera, they would certainly qualify. The difficulty they would have is having to navigate around the immigration laws to determine what is expected from them. For example, they could be sitting in Germany wishing to apply, and they’ve got to research this in order to determine what they need to apply, what requirements are required, and then secondly to actually go and submit the application now at the nearest South African mission. So they are a little bit isolated from the going ons in South Africa, and that is a principle challenge for the applicants of course.

When you have an existing visa you can remain in the republic until you change your status, which is not over complicated but invariably we find that the average foreign person who’s seeking guidance is largely in a position of confusion as to what is required because now you have to apply to a VFS center in South Africa, who are not in an advisory capacity and are simply a post box. So, you may find an applicant who is qualified in actual fact provide an application that is deficient. And that is unfortunate because they’ll face a rejection, and that’s where the problem starts.

Iman Rappetti – PowerFM Host:
Alright, what I want to do Craig is maybe go through some of the broader categories that are perhaps more used in South Africa, so there’s the two things. The one is, you know, people who might get in on a particular visa, and then as you say have that altered later on. The main intention there is to at least get into the country and then to reevaluate and reassess their positions once they’re here and get a change done. So that’s the one we’ll get to that in a second, but perhaps talk us through the one where a foreign national comes to South Africa, you know meets someone that they want to settle with in South Africa, what process then unfolds and how long does it typically take for them to get South African citizenship, and perhaps what are some of the dual nationality rights or access to rights would be for the offspring in that scenario?

Craig Smith – Immigration Lawyer:
Yes look Iman, effectively there’s a hierarchy of status in essence. So let’s just say you’re a foreign person, let’s just say you’re married or you’re clearly in a permanent relationship with a South African citizen, let’s go back to Germany, or obviously it could be anywhere in the world. You would first be tasked with going through the process of eligibility to determine whether you qualify. Now, in essence there are two ways. You can either apply from abroad, and now you’ve got to demonstrate to Home Affairs that you are indeed either married through a marriage certificate or B, you’re in a permanent relationship. And then you need to comply with certain tangible evidence to show you’re in a relationship. If you get that right, you will qualify for a partial visa, which in turn often allows you to work or write a business study or endorsement which you can attach in your application. So you can either do the application abroad, and the only other time you can do it in South Africa is effectively if you have an existing VISA. So you may be on a study visa and meet a South African, and on that basis you can change within South Africa.

The hierarchy of status emanates from a temporary resident to then, let’s just say that same foreign person after five years of marriage and permanent relationship would qualify for permanent residence, and thereafter in accordance with the citizenship act, they would qualify four South African citizenship. Citizenship act has been changed, amended on the first of January, 2013, and there are certain anomalies we’ve picked up between the act and the regulation.

Iman Rappetti – PowerFM Host:
Alright talk us through that.

Craig Smith – Immigration Lawyer:
Yes, the anomalies generally go against like where you would effectively want to naturalize a South African. There are three ways of becoming a South African citizen. You can either qualify by birth, if either of your parents are South African citizens and you’re born in South Africa or out of South Africa. That’s the new change you effectively only now have a category of citizenship by birth and this sentence is not what it used to be in the past. And then lastly, you can qualify for South African citizens require naturalization. And this is where, through the evolution of time and holding permanent residence, you will then be eligible to then apply for citizenship which generally is a five year period. There is an anomaly in the regulations that talks about a ten year period, and I’m not sure if this has since been remedied by the Department of Home Affairs, who are responsible for issuing these regulations, but effectively citizenship by naturalization is the main form of citizenship that is obtained via foreigners that are here having permanent residence and then through the passing of time will be qualified for South African citizenship. Once again, there are a series of requirements, most importantly of the, one of the few requirements is to show a South African peace clearance, to show that you have no criminal contact and you are good and sound character.

Iman Rappetti – PowerFM Host:
An important question in that regard Craig would be in the naturalization process if you can prove you’ve been in South Africa, as you’ve said there are some anomalies in the law as to whether that period is five or ten years, so you know that might be a little bit of a question mark. But can you do that without marrying someone?

Craig Smith – Immigration Lawyer:
Yes of course. I mean as long as you hold permanent residence in the old citizenship act, it was actually quite advantageous for a marital couple. Let’s just say the foreigner has permanent residence and is married to a South African, you merely had to wait two years. No longer is that available of foreign spouses via permanent residence. So now you have to wait five years as in the case of for example anyone else who is required who is required permanent residence through another category you could, for obvious sake have permanent residence through five years holding a work visa. On that basis you can show through the passing of time that you had qualified the naturalized South African citizen. So the long and short of it is, you need to have permanent residence, one, and you have permanent residence for a period of time, and secondly, when you’ve determined that period of time you can’t have an absences from the republic, unless you’re with a South African citizen. So to make up those five years, you can’t for example be two years abroad and then come back and say well, I’ve had a permanent residence for five years. So the answer to requirements in terms of a continued stay.

Iman Rappetti – PowerFM Host:
Anecdotally speaking from your practice’s point of view, because we try to get a national picture from home affairs, and that figure wasn’t forthcoming. I don’t think that we have an accurate 2015 contemporary understanding of, you know, the conversions and the numbers and how many people are documented and not. So anecdotally speaking, from the work that you do in your practice, how many people seek those conversions, how many go from permanent residency to becoming naturalized citizens of South Africa, how many, you know, are seeking things like permanent residency based on a marriage union or marriage contract?

Craig Smith – Immigration Lawyer:
Well look I mean over the last ten years when the Immigration Act was changed quite fundamentally in 2004, it took effect which took effect first of July 2005, all the way through to the new change last year, you know we had a very open immigration, rather immigration friendly policy towards foreign entrants. So you had a huge number of applications submitted for temporary residents and permanent residents, Home Affairs was a lot more open and amenable to picking up the phone and phoning up the applicants to ask for certain methods, or certain paperwork that was maybe not in the original application. Ever since the twenty fifty of May, 2014 Home Affairs has tightened up on the good old telephone call to say look you may not have filled out a peace clearance, kindly supply. So the attitude has hardened tremendously towards the requirements, they are simply rejecting out of hand, they are rejecting applications even when you are married, a foreign person is married to a South African. So what we principally find is we need an attitudinal change, and this in turn has affected the foreign applicant’s approach to applying for certain visas. For example, the general work visa has made it quite, you know, made it quite administratively difficult to get one.

Basically the Department of Home Affairs has delegated the main duties onto the department of labour literally would have the right to attend on the employer’s premises to determine all the nuts and bolts on this prospective employee. So employers don’t necessarily want to get too involved in that. So, general work visas have dropped astronomically in my practice for example, where we used to do a very high number of general work visas, applicants are seeking, are not able to take advantage of a general work visa, and you know they have to look for other packages or not at all and leave the country. So what you’re often finding is the new immigration laws are not only insubstantive, but certainly the manner in which it’s being applied is becoming a rather, it’s becoming restrictive enough to deter many foreign people to stay, and this is not necessarily pertain to unskilled and any skill, but might even pertain to people who have invested in South Africa, who have bought property in South Africa, who are wanting to pack up and go. Despite, you know, the lifestyle you can have and the opportunities that are here. Which is unfortunate.

Iman Rappetti – PowerFM Host:
One of our listeners wants to know, and this is Ricky Marina asking about spousal visa modalities. This is for foreign spouses who, you know, the foreign aspect in a marriage, or in a marriage contract, who have been married to a South African. So a foreigner married to a South African for less than five years, are there any specific visa modalities or requirements? I’m not quite sure what the question is asking specifically, but are there different caveats in what you can and cannot get?

Craig Smith – Immigration Lawyer:
Well, what is, there was a constitutional case of Dawood vs Minister of Home Affairs which certainly make our law very progressive towards foreign spousal with South African members, the decision was welcome many years ago. In terms of the requirements for a spousal visa, let’s just take the marriage scenario. Generally when you have a marriage, when you are married and you present a marriage certificate, assuming it’s properly authenticated, you should not have any difficulties, obviously assuming you’re complying with the other general requirements. What is often happening is, to many applicants, is they’re applying for their spousal visa. So here you have a South African with a foreign spouse, they may even have children, and they’re applying and little do they know, when they’re applying without legal assistance, they apply and for example omitted the South African peace slip. The Home Affairs is not providing any place in this adjudication, they’re simply rejecting the application. So whilst you may be married, you may forget one of the general requirements, for example a South African peace which you may consider a rather unnecessary, but from their point of view it is. And this is where it is, it’s difficult for an individual lay person to determine what the immigration laws are, and regrettably you will then end up facing a potential rejection, the rejection may culminate in that particular person now being, now leaving the country and being rendered undesirable. A family separated with a South African and a foreigner. And that’s rather, you know, that’s rather, in my view, that’s unacceptable. I mean that certainly goes against the grain of precedent in our constitutional court of the way you should be treating spouses with a South African.

Iman Rappetti – PowerFM Host:
Can I ask, Craig Smith, if there is a surrendering of a person’s original nationality in becoming a South African citizen, or do we allow, and I know that certainly in the British context you know I know people have dual citizenship of, you know, places in the UK or European, in Europe and South Africa. And I imagine that applies to the continent as well.

Craig Smith – Immigration Lawyer:
Yes, in terms of citizenship you can have dual citizenship. South Africa many years ago was adverse to dual citizenship. In so far as acquiring South African citizenship whilst you’re, for argument’s sake, taking a UK or Euro citizenship or citizen. In those countries they permit dual citizenship. So as long as when you do apply you get the consent from that country that you are entitled to dual citizenship, Home Affairs will want to see that your particular nationality permits you to have a South African citizenship as well. There are some countries that certainly will not permit dual citizenship and that’s where you will encounter a problem. So it will be a situation where you literally will have to renounce your right to South African citizenship. Let’s just say if you want to take foreign citizenship they may request you renounce. However in the UK and those countries, US, Australia, many European countries you can have dual citizenship and they will accept South African citizenship plus their own original citizenship. The procedure for South Africa is that you just have to get conformational consent from your own consulate office as to whether they will permit that. And then South Africa will grant it.

Iman Rappetti – PowerFM Host:
I’m interested in something you said earlier on in the interview Craig Smith, you were talking about, you know, Home Affairs toughening up and making the requirements for certain categories a little more difficult. We’re dealing in a context where a lot of blame is being apportioned to Home Affairs in the way that they run their affairs vis a vis bribery and corruption and giving people documents in exchange for money and stuff like that, and perpetuating this idea that you know, people can get into South Africa by any means and have the paperwork to prove that they’re here legitimately without having gone through the proper channels. But from your perspective as a practice, the way that you sought to seek documentation and to go through the bureaucratic process, it does show that there has been a bit more stringent adherence to the rules and a tightening up of the allowances?

Craig Smith – Immigration Lawyer:
Look, at the end of the day, Home Affairs has adopted a restrictive policy towards immigration. The question is whether that policy is balanced or not. I mean Home Affairs will tell you that in the interest of national security we need to tighten up our immigration laws and make them restrictive, and South Africa is not open to everyone. And I’ve debated that with the officials before. And I think we need to concede that in the interest of national security, on the one hand that’s good. But on the other hand, the question remains from a matter of policy whether it is correct in simply having such a restrictive policy that, you know, within a human rights environment which we now have, whether there’s perhaps a better balance. You know, immigration and home affairs also has to deal with the refugee aspect, and in the refugee aspect we have the refugee that, and obviously a lot is being said about undocumented economic migrants coming from all over the, all over Africa in the main, from Pakistan, come to South Africa to seek better opportunities. And I think there has been, I think Home Affairs need to accept some of the blame because the manner in which they’ve catered for the asylum seekers has been far wanting in terms of the ability to process them timely and if they’re rejected, then they should be rejected and then they should be sent back. But regrettably, the department has failed in its infrastructure and its organization to deal with many of these asylum seekers and effectively end up staying here for years and years and years. And when the Home Affairs policy gets even stricter, you know, they’ve already entrenched themselves within the community in South Africa. So you know, there’s obviously a lot of xenophobia at the moment, it just, it is important and in fact it’s been stated the intention of the Immigration Act didn’t count on xenophobia to involve civic organizations educate people on education like, as they say in the refugee circles I mean, this cannot be separated from immigration. And so in the refugee role, you are finding the negative consequences of what I would consider badly organized, bad organization where these asylum seekers can simply cross the border with no, the inefficient controls over them, and they stayed longer than they should have. And this is what we have. But we have a constitution. So we can’t just arbitrarily kick these people out. You know, they have to have a right now to proper adjudication and in South Africa many years subscribed to the international covenant on refugee states, refugee affairs, they bound themselves to comply with the human rights in dealing with refugees.

Iman Rappetti – PowerFM Host:
Craig you’ve answered in that some of the questions other listeners have been asking. Very quickly I don’t have much time left, the V listing. This is a person who I imagine in some ways has been determined, you know, a persona non-grata. How long does that category last, is it indefinite or can you rehabilitate yourself?

Craig Smith – Immigration Lawyer:
No you can rehabilitate yourself, you know, I mean it’s an interesting question because ordinarily in the old law you could rehabilitate yourself after four years, apply to the re-listing section at Home Affairs to say you’ve mended your ways. And based on that application they could then lift the V listing. V listing has become obviously more serious now, and a lot busier than they used to be because you now have people who have been banned from the country in terms of this new law where if you leave the country you are rendered, and you have an overstay on the face of it, you are rendered undesirable and made a persona non-grata. And the unfortunate thing about that is you could have very good reasons why you need to leave the country, you may leave because there’s a personal, it could be, you may need to attend a funeral. It could be you could have a close one who’s ill. And for a number of reasons, I mean you have the constitutional right to leave the country if you so wish, yet you know you would be banned, you would be declared undesirable, you would effectively be V listed, and they in effect, you know, from anything from one to five years and then you’re going to have to apply to the department for good cause to see whether they would lift it.

Iman Rappetti – PowerFM Host:
And they would re-evaluate.

Craig Smith – Immigration Lawyer:
Yes, and then you need to rehabilitate yourself.

Iman Rappetti – PowerFM Host:
Alright Craig it’s been a very informative discussion, thank you very much for sharing with us on Power Talk, appreciate it.

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