There are a large number of families and individuals who may are being affected by the advent of Covid-19 and the draconian lockdown laws that ensued after a national disaster was declared on the 27th of March 2020 in terms of the Disaster Management Act 2002 (“the DMA”).
Many of those foreign persons may reside in South Africa and may be the spouses or parents of South Africans who found themselves caught in the midst of the lockdown by being abroad pre-end March 2020 whether through work or personal reasons whilst their families remained in South Africa.
International airports closed and so too international travel. Finally, the Minister of Home Affairs issued Directions that failed to even account for such aforementioned families and relegated to an inferior status vis-à-vis foreign diplomats and or members of international organisations who are expressly entitled to be admitted into South African with their families (spouses and children).
SEPARATED FAMILIES
Dale Smiedt, the immigration director, of Smiedt & Associates was immediately put into action to lobby to break the deadlock for such families caught up in this wave of uncertainty.
Smiedt & Associates was now confronted with various situations where:
- a foreign person and South African spouse were now separated against their will either in different continents or countries and could not reunite;
- children in South Africa were now separated against their will from their foreign parent/s; and
- worse still, there could be further aggravating factors where either the children were very young or suffering from a medical condition or the South African spouse was due to give birth in South Africa or passed on whilst such spouse or parent of a South African was stuck abroad.
THE LAW
The Minister of Home Affairs issued certain Directions on three occasions and on the last occasion, on the 3rd of July 2020, still failed to formally recognise and ignore spouses and children related to South Africans.
In fact, the DHA have suspended immigration services save for a few civic services and still to date remains in out of service both within South Africa and abroad.
When the Minister of Home Affairs issued its latest Directions, specifically Direction 23(1), it sought to provide a mechanism to allow foreign persons to “apply in writing to the Minister” who may have “exceptional circumstances”. This measure is simply woefully short on detail in terms of such medium of such request, turnaround times, contact persons and appeals.
But where it really falls flat are the substantive requirements in terms of Direction 23(2) as you may only be eligible if you can provide:
- A copy of passport; and
- A copy of temporary residence visa but such visa is excluded if Directions 5 and 6 of the Minister’s Directions apply.
What the Minister of Home Affairs has essentially done is, at first glance, provide relief for affected foreign persons but it remains short-lived since those who would in fact qualify are literally those out of non-high risk countries who have existing temporary residence visas.
Thus if you are seeking admission into South Africa you would be excluded if:
- You are from a high risk country and have an existing temporary residence visa; and
- You are from a high risk country and were previously visa exempt.
What this means is that the mechanism for “exceptional circumstances” created by the Minister of Home Affairs is only for those from non-high risk countries and existing temporary residence holders before the lockdown.
What makes this Direction 23 anomalous is that countries like Brazil, Peru, Chile, Russia who may have existing temporary residence can seek permission as they are not high risk countries.
Regrettably, the science and the statistics from the WHO suggest otherwise as these abovementioned countries are in the top ten countries with the highest number of covid-19 cases and well in excess of countries that the Minister of Home Affairs considers high risk like Germany, Switzerland, France and South Korea.
NEED TO APPROACH THE COURTS TO REMEDY SUCH ANAMALOUS DIRECTIONS
Smiedt & Associates will seek to approach the high court to remedy this legally unsound and draconian effect of the set of laws limiting the admission into South Africa during such lockdown.
The Minister of Home Affairs must be welcomed in his endeavor to grant relief to those foreign persons who may have compelling reasons to return to South Africa but where it falls flat is that in terms of Direction 23(2) creates prohibitive requirements and renders it out of reach of most foreign persons.
When it comes to foreign spouses or parents of South Africa it becomes plain and most necessary to go beyond such limited endeavor by the Minister of Home Affairs by seeking express rights of such foreign spouses and parents of South Africans beyond Direction 23.
What is thus incumbent on the Minister of Home Affairs is to remedy Regulations 41(2)(b) and 16(5) of the Disaster Management Regulations and Direction 17B to allow for South Africans and their foreign spouses or members of the immediate family to reunite without such legal anomalies.
DALE SMIEDT
IMMIGRATION DIRECTOR
SMIEDT & ASSOCIATES