Group takes action against Home Affairs’ service delivery

In a concerted effort IMCOSA and various other immigration companies are in the process of taking action against the Department of Home Affairs, in order to enhance service delivery and reduce the considerable backlog with regards to the processing of residence permit applications. IMCOSA's Mrs Julia Willand is on the Management Committee of the Forum of Immigration Practitioners of South Africa (FIPSA).

Response from the Minister's office on the petition mentioned below has been received and discussions are ongoing.

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Home Affairs’ continued inability to meet its statutory obligation to process work permit and other temporary residence applications within 30 days has prompted several immigration practitioners from around the country to petition the Minister on behalf of more than 1 000 affected companies and individual applicants.

The petition, sent via a legal firm on Friday 6 August, is the first step in a group action that will lead to an urgent application for the courts to compel the Department to issue the permits – some of which have been pending for nine or 10 months – if Home Affairs is not able to resolve the matter by Friday, August 20, says Leon Isaacson, the chairperson of the Forum of Immigration Practitioners of South Africa (FIPSA).

“Such a court action will be far-reaching as it will override the rights and current responsibilities of the Minister, as we will ask for an interdict to be issued in terms of the Promotion of Administrative Justice Act (3/2000), which focuses on these kinds of public service delivery issues,” Isaacson says.

He explains that the delay in processing the permits has serious practical implications: foreign workers whose skills are needed in this country can’t take up employment, South African companies who need these skills can’t continue with major projects, international investments that are time-sensitive can’t go ahead, and students from other countries can’t begin their studies on time and, in some cases, even lose their bursaries and residence options.

“Home Affairs’ service breakdown also means that people’s rights are being violated,” says Isaacson. “South Africa has a strong Constitution and a strong rights culture. An individual or company who places an application for a permit has the right to a predictable and speedy process and outcome, and proper legal reasons for decisions, as is called for in the legislation.”

Isaacson says the huge backlog of permit applications was exacerbated by the 2010 FIFA World Cup, which kept Home Affairs’ staff preoccupied, and is now being worsened by the Department’s recent decision to implement the centralisation of all permit applications at its Pretoria head office.

“A short pilot project was carried out in Gauteng earlier this year during which we observed delays in the processing times of applications submitted via the three branch offices involved in the pilot. The quality of the decision-making by the Pretoria Home Affairs staff also declined noticeably after the launch of the project and has continued to be poor,” said Isaacson.

The Pretoria head office started off with a backlog of about 8 000 applications, to which about 5 000 new applications were added every month since January 2010 when it began adjudicating the branch offices in the Eastern Gauteng region during the pilot project, he says.

The centralisation process was to have been phased in at regional offices around the country by March 2011, the end of the financial year, but instead the process was condensed and implemented without proper warning or planning as from 1 June 2010, according to Isaacson. The workload and backlog has clearly increased beyond manageable levels.

“We believe Home Affairs does not have sufficient resources, staff, or adequate systems in place at present to be able to adjudicate the volume of applications and provide information quickly on the applications.”

The matter has become urgent as a recent meeting with Home Affairs’ management in Pretoria - at which Isaacson represented FIPSA – has failed to bring any resolution or improvement.

He says that should it be necessary to ask a judge to issue an interdict, the group will request that the legal requirement for a 30-day turnaround time be enforced, and also that the penalties which often occur when a person’s permit expires be suspended if they have a pending application.

“In addition, we will ask that that the Department be compelled to stick to the criteria laid down in the immigration act as we are currently being asked for documents and requirements that have no basis in South African law.

“If the officials keep changing the criteria and vary in the requirements that they say should be met without observing the requirements of the law, applicants and immigration practitioners do not know what they are meant to be submitting, and the result is that the rejection rate on permit applications goes up. An appeal procedure, which may take six to 18 months then follows, creating a further backlog.”

The move to address the breakdown in Home Affairs’ services follows a recent group action against the Department on a trucking issue that held serious economic consequences for the SADC countries. The truck operators, whose foreign drivers were being prevented from crossing the South African borders when Home Affairs began incorrectly enforcing a work permit issue without warning, won an interdict against the Minister on Wednesday (28 July), to allow them enough time (3 months) to meet the legal requirements, and compelled the Minister to issue short term visitor visas with permission to work, at the Border, which was the previous arrangement.