Home affairs’ laxness puts a family in a desperate race against time
Department engages in pointless power plays and drags its heels instead of solving problems for people
Four years after a family won a Constitutional Court challenge against an immigration regulation, the department of home affairs has taken no action in their case, forcing them to make desperate appeals for help as time runs out for them to visit an elderly relative who has cancer. The Constitutional Court may be the highest court in the land but even this esteemed institution appears to have no power to make home affairs move faster on applications made by foreign spouses of SA citizens or permanent residents.
In June 2019 the court declared an immigration regulation invalid and inconsistent with the constitution. The so-called Nandutu decision concerning regulation 9(9)(a) of the immigration regulations ordered the department to accept the applications and to change the law, which stated that foreign spouses or children of citizens or permanent residents must leave the country to apply for a change of visa status.
After the judgment the applicants were hopeful that an ordeal that began in 2014 was finally over. But it was not. Home affairs did not expedite matters, and nearly 10 years after beginning their battle to work and live a normal family life the couple at the centre of the court case is still stuck in limbo, with the mother unable to get a job, open a bank account, apply for a driving licence or travel with her family.
Their story is just one of hundreds of examples of families trapped in a nightmare of dead-ends and delays at the hands of the department of home affairs.
BEGGING AND PLEADING
Robinah Sarah Nandutu is a Ugandan citizen married to James Ferrior Tomlinson, a South African permanent resident originally from the UK. The couple began Nandutu’s visa application process in early 2014. Tomlinson was eager to introduce his new wife, and later his sons, to his family in the UK but could not do so because she had no current visa.
The situation also meant that their first child was denied a birth certificate.
After four years of “begging, pleading and virtually going on their knees”, a Cape Town judge ruled that a birth certificate should be issued. This paved the way for their second son to be issued a birth certificate.
However, Nandutu’s case remained unresolved. After the appeal to the Constitutional Court in 2019, Nandutu was allowed to apply for a three-year temporary visa to allow enough time for her application for permanent residency to be processed.
But then Covid-19 struck, home affairs closed its doors, and her temporary visa expired.
The department has issued no renewal, visa or permanent residency to Nandutu since then. Visas and permits are meant to be processed in two to three months, and permanent residency applications within eight months. This has not been the case for years.
For the family, this means Nandutu cannot leave the country and accompany her children on a trip to the UK to see their ageing grandparents. Tomlinson’s mother must undergo chemotherapy soon, but ongoing delays at SA home affairs mean he may not have his wife at his side as he supports his parents at a particularly difficult time.
The couple’s appeals keep falling on deaf ears. They state: “The issues raised are rooted in the values we hold most dear; the right to family life, essential to human dignity. How have such concerns apparently been set aside, disrupting a family and causing harm to children. How is that possible? How can this be allowed to persist? Such mysteries suggest fundamental problems at [home affairs] that demand public scrutiny and immediate resolution.
“This recurrent bureaucratic nightmare began in 2014. It was definitively decided by the Constitutional Court in 2019. In the years since [the department] has failed to act. How to explain what seems to be a contemptuous disregard for our highest court speaking to our core values? This is a mystery of the highest order.”
RIGHT TO FAMILY LIFE
In this and many other cases the department could have just granted a waiver. Instead, the bureaucracy dug in its heels. The matter has since been litigated right through to the Constitutional Court. One of the major contentions of home affairs was, in essence, to insist on maintaining arbitrary power in issuing such waivers. The court disagreed. The “lack of guidance as to the exercise of this discretion” was unacceptable.
But the court went further. It took this as an occasion to note that the right to family life is a core ingredient of human dignity, and added simple language to the statute on a preliminary basis, allowing for the legislature to do its job. But there was an added proviso: if the legislature failed to act, this “read-in” would become permanent after 24 months. Why did the court feel it necessary to take this added measure? Because of home affairs’ lamentable treatment of a previous decision that informed this one.
The department had failed to respect the court’s ruling before. Indeed, this pattern of unnecessary “power plays” has played out hundreds of times. In 2019 it lost an appeal brought by my firm and Visa One in the Western Cape High Court over prolonged delays affecting 323 foreign nationals’ applications. We highlighted cases dating back as far as 2011, in which the courts had ordered home affairs to make decisions on thousands of outstanding applications, yet it had failed to comply.
This should have given the department pause before it engaged in such behaviour again. But has it done what the court instructed? No. Forced to accept the application, it simply sat on it.
This is an ongoing problem, one my practice and colleagues in the sector have highlighted many times in recent years. We have more than 100 applications of foreign spouses or children of South Africans that have been pending for months, even years.
Delays, obstruction and arbitrary decisionmaking are not about pieces of paper on desks — they have a profound effect on human lives. These delays are unnecessary and incur a significant cost for all concerned, including home affairs.