Legal Immigration Services
Overstay Immigration Lawyers provides the following legal services:
- Overstay – Challenges on lifting declaration of undesirability at international airports and ports of entry upon departure from South Africa
- Appeals – Advices and Preparation of Appeals against refusals by Home Affairs on temporary and/or permanent residence applications
- Court Expedition – Court litigation and interventions to finalise and expedite:
- Delayed visa or permanent residence application outcomes
- Delayed Appeal outcomes
- Good Cause – Attendances on Home Affairs on Good Cause Applications upon overstays
- Immigration Refusals upon entry at South African International Airports
- Criminal Matters – Magistrate’s Court attendances on being charged under the immigration laws and Bail Proceedings
- Judicial Reviews – High Court Judicial Review Applications to set aside Home Affairs’ decision-making against temporary and permanent residence refusals following Appeals
- Constitutional litigation and challenge to unconstitutional immigration laws
- Waiver Requests – Section 31(2)(c) of the Immigration Act
- Civil Damages Claims against Home Affairs
PRACTICAL CASE STUDIES – PATH TO SUCCESS
1. Overstays and Declared Undesirable on Departure – Lifting the Ban
Overstays and Declared Undesirable on Departure – Lifting the Ban
Introduction
Every foreign person, on departure, through South Africa’s international airports or border posts i.e. Ports of Entry, whose visa has expired, whether through fault or even incompetence of the Department of Home Affairs (“DHA”), he or she will be declared undesirable for up to five years depending on the length of the overstay since the visa expired.
It matters not whether the overstay was solely attributed to the DHA’s fault or not. Every immigration officer at our Ports of Entry is obliged through DHA’s own internal directives to declare every foreign person whose visa has expired, undesirable, on departure. A receipt of a pending application or endeavor to pay fine will simply be ignored.
Such foreign persons who have been declared undesirable are expected to appeal the ban out of South Africa and it is this process that has become totally fractured, flawed and ineffective for those seeking to return.
Smiedt & Associates Immigration Lawyers are acutely aware of this breakdown on the part of the DHA and thus dedicate its immigration division to the successful lifting of these bans to re-unite families or spouses, allow foreign persons to return to work, continue leisure activities, medical treatment, investments.
Legal Provisions applicable:
Section 50(1) of the Act; Section 30(1)(h) of the Act; Regulation 27(3) of the 2014 Immigration Regulations; Section 30(2) of the Act.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Departing South Africa on expired visa – Being Declared Undesirable & Lifting Ban
The Scenario
- A foreign person has arrived on a visitor’s visa and applied for an extension and is now required to depart South Africa even though the extension has not been granted and now the original visitor’s visa has expired;
- A foreign person remains in South Africa and applied for a renewal of longer-term temporary residence or such renewal has been refused and is now required to depart South Africa with an expired visa;
- A foreign person remains in South Africa and either through poor advice or inadvertence overstays the visa by mistake and departs the country.
Our Solution
Step 1
Smiedt & Associates Immigration Lawyers would immediately request the foreigner to send us the following to enable a prompt internal appeal being submitted:
- Copy of Passport Identity page
- Copy of the visa page, which has expired
- Copy of the document declaring undesirability
- Reasons for the overstay and consequent departure
- Any other documentation that would serve as positive factors such as medical letters or notes, marriage or birth certificates
Step 2
Smiedt & Associates Immigration Lawyers to commence Legal Action – Appeal & Sign Court Papers
- Getting the internal appeal submitted to Overstayappeals as soon as possible
- We would immediately assess the merits of the case by looking into the grounds why such foreign person overstayed and departed.
- We will assist in the preparation and submission of the appeal citing the law and the need to lift the ban.
- The appeal can be submitted through the Director-General of the DHA within 10 days of the receipt of the Form 19 ban or the Minister at any stage. However, if the 10 days have elapsed since receipt of the ban then you must appeal to the Minister.
- It is vital that the grounds of the overstay are carefully presented to avoid a negative outcome.
- DHA will always assess whether steps were taken to deal with the overstay before departing and this is where the legal guidance is very important. Ignorance or excuses that are within one’s control are often ignored by the DHA.
- Preparing Court Papers – Simply obtain Court Order
- In most cases, once the appeal has been submitted, there is no response and those who have appealed get stuck as the matters fails to get attention.
- If the appeal is beyond a reasonable time or very urgent we would follow up the ban with court action to expedite the outstanding decision on the ban.
- Our solution is to submit a well prepared and meticulous court application to expedite the pending appeal in order to receive the outcome in the form of a waiver to return to South Africa. All our clients do is sign off the papers and that is all that is needed.
- In this way you can be certain that the outcome will be obtained that can virtually guarantee success in achieving the desired result save for matters that are completely advised against by our law firm.
Step 3
Receipt of outcome – Waiver granted
- Having obtained a court order DHA will be required and compelled to finalise the pending appeal and assuming merits are suitable we will receive the outcome in the form of a waiver sent via email to ourselves on behalf of our clients.
2. Refusals - Challenges and Representations on Immigration Appeals against refusals of visas & permanent residence permits
Refusals – Challenges and Representations on Immigration Appeals against refusals of visas & permanent residence permits
Introduction
A refusal of a visa or permanent residence application is not only an unwanted experience but worse still it can have further debilitating consequences in becoming illegal in the country, loss of work or study opportunities, unwanted return back to your country of origin and even separation from family.
The DHA has refused or turned away 60-70% of submissions of visa and permanent residence permit applications over the last few years resulting from its own poor technical adjudication skills and ineffective organizational management.
Many of the refusals by DHA are without legal substance and unlawful (often simply edited refusal letters without direct relevance to the application submitted). Whilst receiving a letter of refusal can be a daunting prospect it need not be the end of the process since the reasons must be founded in law and fact, and if not, it may well be overturned on appeal.
Smiedt & Associates Immigration Lawyers are briefed by those foreigners who have received refusals and can advise them whether the refusal is correct in law and fact and on what basis an appeal may be successful.
Smiedt & Associates Immigration Lawyers are suitably skilled and technical adept to appreciate the constructs of the law, 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 DHA on the defensive to substantiate their decision. This is often where the refusals are overturned and our clients’ receive their visas or residence permits.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Refusal of Visa & Permanent Residence Applications
The Scenario
- Foreign applicant applies for either temporary or permanent residence and receives a letter of refusal advising that the application is denied with written reasons.
- The written reasons are in many instances ambiguous and unclear and often leaves the applicant even more confused and uncertain than before.
- An appeal must be lodged within 10 working days in a specific manner otherwise the decision stands.
Our Solution
- We would urgently require a copy of the letter of refusal and papers submitted to the DHA.
- Smiedt & Associates Immigration Lawyers immediately assess the case and determine whether the refusal is correct in law and whether to pursue the refusal or not.
- There is no sense in pursuing a refusal when the decision is correct in law. In that case it may be better to prepare a new application altogether and be mindful of the previous errors.
Action taken
- We will prepare a legally assured and well-crafted appeal in writing setting out the case and the reasons why the refusal should be reversed and thus the visa or permanent residence granted.
- Having prepared a solid appeal, we will then put the DHA to terms should they fail to reverse the decision within 30 days.
- If the DHA appeals section fail to adjudicate we will seek to discuss with our clients and consider legal action in the form of court expedition. See below on court expedition matters.
3. Court Expedition - Court litigation and interventions to finalise and expedite:
Court Expedition – Court litigation and interventions to finalise & expedite:
- Delayed visa or permanent residence application outcomes
- Delayed Appeal outcomes
Introduction
Court Expedition – Delayed Decision-Making
Many foreign persons remain in ‘legal limbo’ with delayed applications stuck with the Department of Home Affairs (“DHA”) whether it be delays in the adjudication and finalisation of temporary or permanent residence applications, or delayed appeals and the delayed outcome, there is a general frustration by foreign applicants in resolving long-awaited decisions.
At Smiedt & Associates Immigration lawyers we understand how to efficiently resolve these delays using the court mechanism to expedite unwanted delays.
In some cases, delays require prompt and clinical attention to avoid becoming illegal and overstaying or having to resubmit a temporary residence due to delays in the adjudication of permanent residence or just the lost opportunity to take up employment or at times the risk of remaining with a spouse or children.
We are contacted by frustrated applicants throughout South Africa and abroad for that matter by those foreign people who are fed up by unwanted delays and outstanding appeals whether through DHA Head Office or South African offices abroad, to provide urgent 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.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Court Expedition – Court litigation and interventions to finalise & expedite
The Scenario
Delayed Temporary or Permanent Residence or Appeals
- Foreign applicant applied for a temporary residence, receives a receipt of submission of the application and the permit is still pending after more than 2 months.
- Foreign applicant applied for a permanent residence, receives a receipt of submission of the application and the permit is still pending after more than 8 months.
- Foreign applicant has appealed against the refusal and has challenged the basis of the refusal and correctly submitted an appeal either at VFS or if abroad at the relevant South African Mission. The appeal is pending beyond 2 months.
Our Solution
Smiedt & Associates Immigration Lawyers are mindful of the perception of fees when it comes to going to court and we provide a cost-effective and professional solution to perform High Court interventions against the DHA to expedite any outstanding temporary or permanent residence applications or appeals with unmatched success. We keep it simple and decisive.
Step 1
Legal Action – Tactical Urgent or Non-Urgent High Court Litigation
- We would take little time to appreciate whether we would approach the courts on an urgent or non-urgent basis to bring relief to unwanted delays.
Step 2
Court Papers & Court Date confirmed
- Once we have determined that we will prepare court papers within the shortest possible time frame. The costs and time are kept to a minimum to avoid any further delay and of course to keep the costs contained.
- Once we have completed the court papers you will simply sign them off correctly per our instructions and return them to us. We would take care of getting the court papers issued at court and service on DHA and we would get a court date in the shortest possible time frame, which can be a matter of days, if urgent, or a few weeks if non-urgent.
Step 3
Attendance on Court & Settlement
- It is important to appreciate that you need not attend on court but are merely expected to be available to sign off the court documents. That is it.
- What will happen on the day of the anticipated court date is that the DHA through its legal advisors, the State Attorney, will in most cases settle and offer to finalise the pending delay no matter if it is a temporary or permanent residence or appeal.
Step 4
Outcome of Application or Appeal
- The court order is now given effect to in the form of a court order compelling the DHA to act in accordance with such order or they face contempt of court proceedings, which they would want to avoid at all costs as this is a criminal charge against the DHA officials.
- The outcome is received via the DHA to the office or submission center where originally applied or appealed.
4. Good Cause - Attendances on Home Affairs on Good Cause Applications upon overstays
Good Cause – Attendances on Home Affairs on Good Cause Applications upon overstays
Introduction
Smiedt & Associates Immigration Lawyers are often engaged to assist on overstay matters where the foreigner remains in South Africa and does not depart the country and wishes remedy his or her overstay for reasons of ‘good cause’.
The ultimate objective is upon success the foreign person will receive a Form 20 document, which authorizes such foreigner to remain in South Africa and apply for a new status without having to depart the country.
‘Good cause’ or what is also termed a ‘legalisation’ is based on whether a foreigner was subjected to circumstances beyond his or her control which resulted in the overstay and the DHA would consider the grounds and question whether the overstay was attributed to the foreigner or not.
Successful ‘good cause’ applications are often based on clear instances where the foreign person has been subjected to circumstances like illness, family crisis and other unforeseen accidents or events that could not have been avoided and cause the overstay in the first place.
Smiedt & Associates Immigration Lawyers will assist applicants and attend on the DHA offices with them to submit and make the application to ensure that the application is given its best chance of success.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Good cause to apply for status in South Africa & Form 20
The Scenario
- A foreign person overstays his or her visa and intends to remain in South Africa and apply for a new status without having to leave the country.
- There are viable grounds of ‘good cause’ that will mitigate or excuse the overstay and allow such foreign person the authority to remain in South Africa through a Form 20.
- A foreign person would now have the permission to remain in South African and apply for a new status.
Our Solution
- Smiedt & Associates Immigration Lawyers together with its foreign clients will attend on the DHA’s Inspectorate who are tasked to entertain and accept ‘good cause’ applications and would be responsible to issue Form 20’s. It is essential that legal representation is sought to avoid possible negative situations like arrest and detention due to overstays or visa contraventions.
- We will consider the merits of the overstay and prepare a well-articulated set of representations reflecting the factual background and legal principles at play in excusing ‘such overstay.
- We will contact the Inspectorate or immigration officer in advance and make submissions and present the written ‘good cause’ to facilitate prospective legal status in South Africa.
- We will act in accordance with section 32 and regulation 30 of the Immigration Act and its associated Regulations and craft the factors that will go the core of the overstay and excuse such conduct.
- These ‘good cause’ applications often take an inordinate amount of time to be finalised and there are instances where we would approach the courts to expedite a pending ‘good cause’ especially where the grounds are very much in favour of the foreign individual.
- In the event that the ‘good cause’ or ‘legalisation’ is refused and the foreigner is still insistent to remain in South Africa then he or she may face the unwanted prospect of either being prosecuted or ordered to leave South Africa. That is a matter that will then require further attendances.
5. Immigration Refusals to Enter and Detentions at South African International Airports
Immigration Refusals to Enter and Detentions at South African International Airports
Introduction
The DHA through is immigration officers, or what is called its Inspectorate, has the right to ascertain the valid status of each and every foreigners’ status before allowing the entry of such foreigners.
The DHA would inspect the visa or permit and determine its validity within the confines of the law. If they determine the status to be invalid they are obliged to refuse entry of any foreigner for reasons that must be stated in writing.
Any refused foreigner will either be placed on a flight or conveyance to return back to his or her home country or remain in a holding facility if there are no flights, or, very importantly, until the validity of such status is finally determined after an appeal.
Smiedt & Associates Immigration Lawyers are often contacted by family or interested parties to approach the DHA at the airports to resolve such situation.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Refusal into South Africa
The Scenario
- A foreign person arrives at a South African International Airport or Border Post and is refused entry on the basis of an invalid status.
- The refused foreigner is insistent that he or she has a valid status and therefore the right of entry and maintains the right to be admitted into South Africa.
- The refused foreigner is issued a document authorizing his refusal by the DHA and gives reasons to be held in a holding facility until it is determined that the right of admission is objectively established.
- The DHA will always attempt to coerce the refused foreigner to depart rather than challenge the refusal to enter South Africa.
Our Solution
Step 1
Visit and take instructions
- Smiedt & Associates Immigration Lawyers will immediately attempt to visit the refused foreigner at the holding facility and take instructions.
- Normally a friend or family contact us and we will obtain as much information as possible in order to determine whether the refusal appears justified or not.
- In many cases the refused foreign person is often held at the international airports and we would attend on such airport and engage with the DHA to determined their position.
- We would also visit the refused foreigner and confirm the legal position to determine whether the refused foreigner has in fact been refused arbitrarily or there is a very good reason for the refusal in the first place.
- If the DHA have acted in a spurious or biased manner or unlawful manner we would argue forcefully that the refused foreign person must be immediately released and submit an urgent appeal to the Minister to review the refusal by the immigration officials at the airport.
Step 2
Prepare urgent review request to Minister
- Smiedt & Associates Immigration Lawyers would urgently prepare and submit even whilst in attendance at the airport to stop the immediate removal of the foreign person being held and refused entry.
- This will immediately place the DHA on risk to ensure that their refusal was founded in law and not just for random or spurious reasons.
Step 3
Prepare Urgent Court Papers to allow entry into South Africa
- Smiedt & Associates Immigration Lawyers would not delay after submitting the review request to the Minister and prepare court papers to compel the DHA to allow entry into South Africa.
- Having obtained a court order to compel the DHA to allow the admission into South Africa the refused foreigner will be admitted into South Africa and will no longer be held in such holding facility.
6. Magistrates Court litigation on criminal detention and charges relating to immigration laws
Magistrates Court litigation on criminal detention and charges relating to immigration laws
Introduction
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 DHA will either act 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.
Smiedt & Associates Immigration Lawyers often attend court on criminal matters and the immigration cases are no different to the principles of criminal procedure and the substantive law of evidence and requirements under our criminal law to prove guilt.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Criminal Attendances – Immigration related charges
The Scenario
- A foreign person is apprehended in a raid or just by chance and is arrested and detained at the police station.
- We would immediately take instructions with family or the foreign person who may be detained or charged.
The Solution
- We would immediately want to establish where the foreign person has been detained and attend on either the police station or even at times at the DHA offices.
- We would at times have to prepare and run a bail application if police bail or after-hours prosecutor’s bail cannot be arranged whilst at the police station.
- Be mindful that the aspect of fixed address becomes significant in bail proceedings and that remains key to bail.
- We would want to ascertain when the foreign person (now the accused) will appear so we can intervene and come on record to defend the accused.
- We would determine the facts of the case and the law to determine whether the charges can be withdrawn and if not how to proceed to dispose of the matter in terms of a trial or at worse a plea.
7. Judicial Reviews - High Court Judicial Review Applications to set aside Home Affairs’ decision-making against temporary and permanent residence refusals following Appeals
Judicial Reviews – High Court Judicial Review Applications to set aside Home Affairs’ decision-making against temporary and permanent residence refusals following Appeals
Introduction
There are instances where the DHA has continually refused the foreign applicant’s application for temporary or permanent residence application on appeals and upon the last refusal by the Minister a foreign applicant is now entitled to set the decision aside as unlawful is the grounds of such decision are flawed in law or on the facts.
Judicial review will require high court interventions and require technical immigration assistance to fully appreciate the immigration laws and the grounds of refusal.
If the refusal is founded on bias, failure to apply one’s mind, an error of law or facts, irrational then the foreign applicants may seeks the court’s intervention into bringing relief and seeking redress to override such decision or ensure that the refusal is forced to go back to the Minister to properly consider the decision again.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Judicial Review of decision by DHA
The Scenario
- The DHA through the Minister reinforce the refusal after all the internal appeals and the foreign applicant remains steadfast that the DHA have made an error in upholding the refusal.
Our Solution
- Smiedt & Associates Immigration Lawyers will seek to act with haste as the foreign person will likely be at the end of the road in exercising internal appeals.
- We would immediately prepared court papers setting out where the DHA have made a poor decision that must be reviewed and set aside.
- The matter would be heard in the high court and it would remain whether the DHA would oppose the court application or not.
- We would prepare often brief counsel to argue the matter and claim costs based on the fact that the DHA have made a poor decision in the first place having forced the foreign person to take them to court.
8. Constitutional Litigation – High Court litigation to challenge constitutionality of immigration laws
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.
Smiedt & Associates Immigration Lawyers are experienced in all constitutional challenges that may impact on the rights of foreign persons.
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.
9. Waiver Requests – Section 31(2)(c) of the Immigration Act
Waiver Requests – Section 31(2)(c) of the Immigration Act
Introduction
In many cases, the DHA have legal requirements contained in the regulations for particular visa or permit categories, and where, in some instances, where good cause can be established, the Minister can waive certain requirements to assist a foreign applicant.
Case Study – Smiedt & Associates Immigration Lawyers in action:
Case – Waiver Application to the Minister of DHA
The Scenario
- Certain foreign key individuals are sought to take office in South Africa to oversee important organisational strategies and interventions and the hence the need to acquire a work visas without Department of Labour delays;
- Religious and sporting codes require professional persons to come to South Africa;
- Investors plan to startup businesses in the national interest and require the Department of Trade and Industry to allow lesser investment amounts to commence business in South Africa;
- A minor South African child is supported by a foreign parent and a change of status as required as exceptional circumstances to allow the parent to remain in South Africa with the child and apply in the country.
Our Solution
- Smiedt & Associates Immigration Lawyers will take instructions and highlight the grounds of good cause and or exceptional circumstances to justify permission not to comply with certain legal requirements.
- We will prepare a written waiver application directed to the Waiver Section of the DHA in order to achieve relief against having to meet full compliance with all the legal requirements under the immigration laws.
10. Civil Litigation – Damages for Compensation against DHA
Civil Litigation – Damages for Compensation against DHA
The Scenario
- 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.
Our Solution
- Smiedt & Associates Immigration Lawyers are well equipped to prepare and provide legal assistance and advice on merits to determine whether in law the chances of success are promising, and second, what the expected damages claims will amount to in terms of quantum.
- It is important to appreciate that a successful claim against DHA must be met by showing bad faith on the part of a litigant sustained due to wrongful action by the them.
- We may either proceed on a contingency basis by agreeing on a percentage of quantum assuming the case is a sound one in law.