The Department of Home Affairs (“DoHA”) has communicated that it is facing a backlog in processing visa applications. Their challenges appear to be immense in light of the long extensions it has given to foreign nationals to remain lawfully in the country while waiting for a decision from DoHA. These extensions however do not resolve the practical consequences of the backlog for individuals. This article addresses how the courts may be utilised to seek relief where the delay at DoHA has urgent and serious consequences.

On 1 September 2022, the DoHA issued a circular titled: Temporarily Measures in respect of Foreign Nationals in light of a Backlog Experienced in Processing Outcomes on Waiver Applications and Visa Applications until 31 March 2023. This circular confirms inter alia that “foreign nationals who are awaiting the outcome of visa applications are granted a blanket temporary extension until 31 March 2023 of the current visa status.”  On 29 March 2023, the DoHA extended the blanket concession to 31 December 2023 for long-term visa or waiver applications awaiting outcomes.

The effect of this is that applicants, who made their long-term visa or waiver applications before 31 March 2023, are permitted to legally remain in the country until 31 December 2023. While this circular deals with the immediate issue of remaining present where the applicant is already in South Africa, it does not address circumstances where someone requires a decision from the DoHA as a matter urgency or the delays have caused adverse effects on the rights of the visa applicant and / or his or her family.

Some of these rights include the right to dignity (including to work and enjoy a spousal and / or family relationship) and the right to lawful, reasonable and procedurally fair administrative action. Take for example an instance where a person is already present in the country but awaits a visa or endorsement affording such person the right to work. The right to remain present in the country until 31 December 2023 does not address an instance where a family member is financially compelled to depart South Africa on the basis that a decision on a working visa has been unreasonably delayed.

The Immigration Act 13 of 2002 (“Immigration Act”) requires that “permits are issued as expeditiously as possible” and Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) requires procedural fairness where the rights of a person are materially and adversely affected. PAJA further provides that decisions must be taken without unreasonable delay.

The provisions of the Immigration Act and PAJA provides a legal mechanism to bring an application to compel the Minister and Director-General of Home Affairs to make a decision on a visa application where they have failed to do so, there has been unreasonable delay and there is a duty to take a decision.

A number of attorneys firms, including ours have brought High Court applications against officials of the DoHA to protect the rights of persons who are materially and adversely affected by the capacity issues at the DoHA. Where there is factual information to justify urgent relief, an application may be made to receive an answer on a visa application within days of obtaining an urgent court order.

Fortunately, the Office of the State Attorney who is responsible for handling criminal and civil litigation cases instituted against state officials, appears to be cognisance of the practical implications of the challenges at the DoHA. They have been willing to find amicable solutions on a case-by-case basis. The Minister of Home Affairs has also embarked on immigration policy developments. However, in the interim, foreign nationals and their South African loved ones either bear the consequences of the administrative challenges or seek relief through the courts.

This article is intended to give general information and is not intended to provide legal advice. It does not replace the need to seek legal advice, nor does it contain all the information relevant to the subject matter. Each situation is different and must be evaluated on its own merits.