Court tells Home Affairs officials to stop acting as gatekeepers

The Western Cape High Court has told Department of Home Affairs (DHA) officials to stop acting like gatekeepers by refusing to accept residence and status applications.

DHA ‘screeners’ in Cape Town are claimed to have overstepped their authority by refusing to accept applications for processing. Home Affairs offices deal primarily with issues related to citizenship, birth, marriage, and ID.

Despite a similar order being granted several years ago against the same Home Affairs office, applicants once again found themselves having to take legal action against the department for the exact same issue.

Immigration law firm De Saude-Darbandi Attorneys also previously obtained a similar order against VFS, the company handling visa applications on behalf of DHA, which stopped its officials from refusing to accept visa or permit applications, often on spurious grounds.

Last week’s judgment makes it clear that the power to approve or disapprove visa, residence, or status applications resides in Pretoria, not in Cape Town.

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Applications’ irregularly and arbitrarily refused’

The case, brought by eight applicants represented by De Saude-Darbandi Attorneys, asked the court to declare the conduct of the screeners to be inconsistent with the Constitution and other laws. The director-general and minister of Home Affairs were among the four respondents cited in the papers.

The DHA opposed the application, arguing that the screeners were there to perform a bureaucratic function and were not assuming the role of gatekeepers.

Attorneys for the applicants say their clients had applications irregularly and arbitrarily refused by DHA screeners, forcing them to turn away as if no application had ever been filed.

When an application is refused, no written justification needs to be provided.

The purpose of departmental screeners is to scrutinise applications and verify them against provided checklists for completeness and accuracy.

The applicants argued that the officials are there to advise if an application is deficient, not to act as gatekeepers by refusing to accept applications for processing in Pretoria.

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Refusals

One of the applicants was denied the opportunity to register her birth on the grounds that her parent’s status had to be determined first. While the law allows the department to consider the status of parents in such cases, the DHA refused to accept her application outright, insisting that her parent’s status must first be determined separately.

This not only adds unnecessary strain to an already overburdened department but also means that a process that typically takes around eight months could end up taking two years or longer.

Another applicant, with citizenship in both Namibia and South Africa, applied for a certificate confirming his SA citizenship but was turned away by an on-floor official who claimed the applicant was an illegal foreigner.

Another applicant was asked for documents that are not required by law.

Two others were prohibited from applying for citizenship after officials told them that their parents had wrongfully and fraudulently obtained permanent residence or citizenship.

In another case, a DHA screener processing a birth certificate application demanded a DNA test to prove the applicant’s relationship with her father despite the fact that she had included an official birth certificate in her application, which clearly confirmed the details of her biological father.

Yet another applicant was prohibited from submitting a citizenship application because an official told him an investigation against his father rendered his application ineligible for acceptance.

Though the applicant was born and raised in South Africa as a citizen, he was unable to register for university because DHA refused to issue him an ID due to his father’s flagged status.

To avoid having his life put on indefinite hold, he attempted to apply for status independently. The DHA was supposedly investigating the father’s status for more than eight years, but this appears not to have happened.

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‘Lacking in competence’

In all these cases, the applicants contend that DHA officials overstepped their power and lacked the competence to refuse to accept an application. That power lies elsewhere within the DHA – at the Pretoria office.

The DHA refuted the existence of gatekeeping in the Western Cape, arguing that its officials are mere screeners who walk about the DHA floor to offer assistance, check if people are in the right queue, and ensure that they are in possession of the right documents.

All applications are screened at the first point of contact to ensure all necessary documents are attached to the application. They are then captured on the computer system before being sent to Pretoria for consideration.

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Officials’ acting unlawfully’

Judge Constance Nziweni of the Western Cape High Court ruled that officials without the requisite power who refuse to accept or process applications are acting unlawfully.

She ordered the DHA to accept the documents of the applicants for processing and awarded costs against the respondents.

“We are very pleased to share a significant victory in a recent case involving visa and residency applications at the DHA in Cape Town,” says Stefanie de Saude-Darbandi of De Saude-Darbandi Attorneys.

“As lawyers, we are compliance officers. We don’t send our clients to Home Affairs without all the necessary documentation, yet their applications were being unlawfully turned away without written reasons.”

She adds: “Our clients faced unfair delays, rejections, and were turned away without their applications being processed. Through diligent effort, we successfully challenged this wrongful rejection and obtained a judicial review order.

“This ruling not only allows our clients to proceed with their applications, but it also establishes a clearer path for others seeking to file at this office.

“With this judgment, we hope Home Affairs will follow the right process.

“Unfortunately, our clients will have to resubmit their applications because the previous ones have expired, but at least this time we have a court judgment in our favour.”

This article was republished from Moneyweb. Read the original here.