Legal ServicesAppeal, litigation & intervention
• Australian Luc Osstyn missed the birth of his first-born in Cape Town.
• And wife Jade van Ryneveld has missed having her husband at her side for seven weeks.
• But finally their separation nightmare may be over.
Our law firm is prominent, is highly sought after and specialized in the provision of immigration related legal services to individuals and organizations who are facing an ordeal with our Department of Home Affairs typically in a number of common areas.
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 migistrates 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.
See our typical Case Studies
Outstanding Visa 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.
- Client applied for a temporary residence, receives a receipt of submission of the application and the permit is still pending after more than 3 months.
- Client 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 guaranteed success.
Tactical Urgent or Non-Urgent High Court Litigation.
Rejection of Application for Temporary or Permanent Residence
Client applies for either temporary or permanent residence and finally receives a letter of rejection advising that the application is denied with written reasons.
Client submits and internal review request or appeals and no response is forthcoming and finalization is required.
Our immigration law firms attends on challenging the merits of any adverse decision make by the Department of Home Affairs and provides initial options whether the decision was lawful and whether such decision ought to be challenged through formal written submissions or High Court Interventions to test the lawfulness of such unwanted decision or outcome.
Tactical Urgent or Non-Urgent High Court Litigation or Formal Appeal Submissions.
Legalization Of Overstay / Expiry Or Breach Or Contravention Of Permit Conditions
Client overstays his or her expiry of permit and either wishes to depart South Africa without risk of immigration enforcement under the immigration laws to arrest, detain or deport or issue fine and order to leave or charge the foreigner as a criminal office.
Client overstays but wishes to renew or change his status whilst still remaining in South Africa.
Our specialist South African lawyers 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 permit contraventions.
We will attend on the Inspectorate or immigration officer concerned and make submissions and legal interventions to facilitate prospective or continued legal status in South Africa.
Legalization attendance on Immigration Officers / Inspectorate and make formal Submissions to submit application after breach of permit terms or overstay.
Attendance on the Magistrates Court to challenge Detention to ensure release if person arrested.
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.
Our Immigration Legal Services will provide Opinion and Advice on merits.
Institute legal action in Magistrates or High Court for Damages Claim.
Corporate Relocation & Strategic Consulting
Client wishes to relocate a branch or 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.
Waiver or Exemption Written Requests
Certain foreign key individuals are sought to take office in South Africa to oversee important organizational strategies and interventions and the hence the need to acquire a work permit and in meeting all the typical work permit 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 permit application.
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 R2.5 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.