New visa rule: SA’S swallows will fly away
Home Affairs’ latest visa directive is likely to drive away sun chasers and tourists. By
Sun chasers or “swallows” who haven’t received a visa renewal by 23 February have been advised to heed the latest directive by the Department of Home Affairs instructing them to leave South Africa by the end of February, or risk being banned.
The surprise directive, published on 21 December 2023, notes that people with short-term visas that were issued in terms of section 11(1)(a) of the Immigration Act “for 90 days or less, up to and including 30 November 2023, who have applied for a renewal of the visa and have not received the visa renewal outcome by 23 February 2024 … must make the necessary arrangements to depart from South Africa on or before 29 February 2024 to avoid being declared [undesirable]”.
The Border Management Authority is under strict instructions from the department to enforce the directive, which at the same time gives another extension to foreigners whose waiver and visa applications were still pending as at 30 November 2023. This includes applications for long-term visas for business, study or work purposes, or for relatives. Applicants falling in these categories have been given extensions on their current visa status until 30 June 2024.
The directive on short-term visas ignores the department’s own inefficiencies and inability to complete what should be a simple task: South Africa grants short-term visas on arrival to a raft of countries and territories, including Namibia, Canada and the European Union, for 90 days. During this time, visitors can apply for an extension of a further 90 days. But because of corruption and incompetence in the department, it is unable to do so in a reasonable time.
Swallows have grown accustomed to using their potential six months in the country to their advantage. They can bask in a Mediterranean climate for a fraction of the cost of a European holiday as their euros, pounds and dollars stretch further, which makes South Africa an attractive option for visitors, particularly among retirees.
The eleventh-hour 21 December directive cut short visitors’ hopes of a longer stay in South Africa, forcing them to leave two months earlier than expected or risk being declared “undesirable” and banned.
This is causing immense uncertainty in the market and making South Africa less appealing to tourists, says Dirk Meissner, the managing director of Wanderlust, an immigration and naturalisation service in Stellenbosch, Western Cape.
Lost opportunity
The department is messing up what should be a simple process to extend stays in South Africa for a total of 180 days, says Meissner. It also made two critical mistakes by omitting mention of retired persons’ visas and botching the pending 90-day extensions.
“We had a lot of swallows coming in early in October and November [who] duly submitted their visa extensions, planning on staying 180 days, as they may. So typically they would like to stay until April but now have to leave on 29 February 2024. The [words] economic sabotage, especially here in the Western Cape, come to mind.”
Swallows are a strength for the province because of their investment in the Cape and their consumption, Meissner says, which boosts everything from hospitality to suppliers and services.
“Everyone smiles and is grateful for what they receive. Does our Home Affairs minister really sit in such isolation that he does not see any of this – the desperation of South Africans for these kinds of jobs and contributions?” he asks.
Visitors do not know how long the visa extension application will take, and in many cases the outcomes are only delivered months later, he adds.
“The average processing time is 132 days for a simple 90-day visa. Some [of my clients’ applications] have been pending since January last year. About 90% of swallows have property in the Western Cape.”
Misery loves company
Kristina Gromova of De Jure Immigration agrees, saying spouses have been separated from each other and children from their parents. “Some have missed out on important family occasions, including the opportunity to say goodbye to a loved one who passed away, graduation ceremonies, weddings of close family members, anniversaries, etc, because of the fear of not being able to return once they have departed.”
Previously, it was quite simple to apply for some visas, Gromova says, but the “verification” process that the department has implemented is causing further delays, as not all institutions respond immediately or at all.
For example, banks in Europe will not verify or confirm details regarding their clients’ financial standing when asked to do so by the department because of privacy and banking laws applicable in those countries.
Last year was a particularly bad year, says Stefanie de Saude-darbandi, an immigration attorney. Her firm led almost 90 high court cases, including four delay cases representing close to 800 outstanding visa applications.
“The duty rests on [the department] to process these applications. People are applying in time, especially swallows who do nothing other than spend money here.”
What to do?
Home Affairs Minister Aaron Motsoaledi’s “backlog eradication plan” for residency permits and visas has failed to clear the backlog. He told Parliament last year that the backlog remained at almost 75,000, with an additional backlog of 44,000 in permanent residency permits.
There are “formidable” backlogs in the approval process and the delays have worsened despite the department losing in the Supreme Court of Appeal (SCA), which was critical of the minister and held him ultimately responsible for the department’s conduct.
A leaked memorandum on class action suits from the State Attorney’s office is scathing of the impact that the delays, the department’s conduct and consequent litigation have on the government.
The memo, drafted by Shireen Karjiker, Dalphine Smith and Sachin-lee Simpson, expresses concern that the department’s inability to adjudicate permits is spawning litigation and escalating legal costs.
The memo states that, after the department lost a case brought by De Saude’s firm in the Supreme Court in 2017, courts have issued cost orders worth millions of rands against it, with numerous matters still pending.
“It can safely be noted that it is very apparent that nothing has changed since the De Saude SCA judgment,” reads the memo.
“There [are] still an overwhelming number of permits in the system at [the department] that require adjudication and [a] backlog that has no end in sight…”
Buck stops here
Noting a recent Constitutional Court judgment in favour of Lawyers for Human Rights, the State Attorney’s office said there was not even the remotest hint of an apology by Motsoaledi and Home Affairs director-general Livhuwani Tommy Makhode for the “deplorable state” of the department, nor for the fact that Makhode admitted to signing an affidavit without “applying his mind” to the contents.
“Our opponents are most definitely going to capitalise on this judgment.”
Attorney Gary Eisenberg says he has been “in constant” litigation against the department over the past 20 years.
“Home Affairs is no longer in compliance with the Constitution and is a rogue department. It does not comply with the Bill of Rights or with court orders…
“Unfortunately, in as much as 50% of the time it does not comply with the orders. You first have to go back to court for contempt proceedings to enforce the order. And that is shocking.”
The department failed to respond to requests for comment.
For now, De Saude warns visitors who have a short-term visa application pending that they must leave by the end of February. Because if they do not comply with the directive, they will be declared “undesirable”.
“Follow the waiver because these officials have strict instructions to apply the blanket waiver,” she says.