Radio Talk FM 702 – New Immigration Regulation of 2014 in South Africa

Live on Radio Talk FM 702 – Craig Smith is interviewed concerning the New Immigration Regulation of 2014 in South Africa.

Xolani Gwala – Radio DJ:
There apparently is a lot of panic over new immigration laws, these immigration regulations are causing wide spread confusion among immigration agents and lawyers. One lawyer Craig Smith is quoted in a newspaper article saying he is planning legal action against former minister Naledi Pandor or her successor Malusi Gigaba, for passing what he refers to as xenophobic laws that contradict each other and are riddled with errors. Regulations were presented on the 22nd of May, Craig Smith is an immigration lawyer he is on the line and he is an immigration lawyer with Craig Smith and Associates. Hi Craig.

Craig Smith – Immigration Lawyer:
Hi Xolani, how are you doing?

Xolani Gwala – Radio DJ:
I am very good, welcome you call these xenophobic laws, what is this about xenophobic laws?

Craig Smith – Immigration Lawyer:
Well effectively the Minister of Home Affairs has enforced regulations that take effect on the 26th of May which have culminated in bringing about 5 pieces of immigration together with one days’ notice. Effectively you have had 2003 immigration act that has been amended in 2004, 2007, 2011, 2013 plus the new immigration regulations which will effectively set up the immigration machinery and the laws that determine whether foreigners can enter South Africa and invest in South Africa. It appears and we are quite confident that the Minister has failed to properly apply his mind at the time in passing the regulations on the basis that the immigration act with all its amendments is inconsistence in many instances and flawed in terms of errors in the law and is making it in terms of the regulations that is making those regulations highly onerous for foreigners to enter South Africa in fact the regulations make the foreigners forced to leave South Africa.

Xolani Gwala – Radio DJ:
Give me a specific example though of how contradictive these laws are especially with things such as the constitution.

Craig Smith – Immigration Lawyer:
Well I will give you a scenario I have a client who has flown in from Nigeria a South African lady with 11 years husband they are married and they have flown in to see me to apply for a spousal permit to remain and now settle permanently in South Africa. They are undergoing IVF to have a child, now home affairs by their new regulations have effectively said that they must go back to Nigeria where they were residing at the time despite all the issues they are having from a medical point of view and they are being forced to go back to their home country and start again and apply for a permit there whilst they have come down here to find a home and to pursue the IVF and so effectively partners who have the fundamental right to be together, the right to dignity are effectively are being forced to leave South Africa at their own expense and effectively apply with laws that are riddled with inconsistencies.

Xolani Gwala – Radio DJ:
Is there a possibility, and I know that the story has come up over and over again for instance about marriages of convenience and there for that the government has got to be very careful and scrutinise all the applications so what is wrong then in sending them back and saying go through the process of application?

Craig Smith – Immigration Lawyer:
What we effectively have here is a situation where of course immigration regimes throughout the world will always encounter those matters where they are really pushing the boundaries in terms of eligibility. This is my contention, home affairs very own administrator of efficiency has failed to deal with the high backlogs and the reason the backlogs culminated where we are today is because of the lack of administrative efficiency within the department, that has caused the bottleneck, that has caused delays and my feelings are that home affairs are really just passing these laws to stop the blockage and make less foreigners apply so they can actually cope. The system for the last 10 years has functioned very well with the highest number of tours into South Africa in the course of this year so the current regime is working, we cannot afford not to have foreign investment as an example the film and production industry contributes over a billion Rand a year to our PDP and that is just the film and production that is not all the other industries. We are a developing country we cannot afford to be investor unfriendly.

Xolani Gwala – Radio DJ:
That is true but the other side of the argument is that we don’t put South African’s first so we have got to be very meticulous of examining the applications of who comes into the country and that those jobs that they are taking are not South African jobs, in other words those are people that possess special skills that we need in this economy.

Craig Smith – Immigration Lawyer:
Look it is a state position by home affairs that we definitely need foreign skills, the issues on our view is a narrow view because we need the foreign investment to create jobs, jobs are not brought about by home affairs closing its boarders, jobs are brought about by growing the economy and that is the governments task to have the necessary policies in place. I don’t want to get into aspects of where money is going necessarily but I mean at the end of the day the more investment by the foreigners bringing in pounds euros and dollars in bulk, that is what this country needs, that is what creates jobs and that is what contributes to the economy otherwise they are not going to come to South Africa buy houses, start businesses and make very large investments in certain important industries.

Xolani Gwala – Radio DJ:
Craig good to talk to you, thank you very much for your time this afternoon. Like I said we will certainly try to see if we can get the department of home affairs to respond to the concerns raised by and again if you have been directly affected by these contradictory (and I say that according to Craig) these contradictory laws, xenophobic laws, give me a ring let me know how.

About Craig Smith

Craig Smith a Specialist Immigration Lawyer in Cape Town, South Africa