Class action lawsuit challenges Home Affairs dept

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A class action lawsuit, spearheaded by immigration specialists Global Migration SA, is to be brought against the Department of Home Affairs in a bid to shorten the unacceptably long waiting period that qualified candidates face when applying for permanent residence in South Africa.

Leon Isaacson, MD of Global Migration SA, says that while the process of applying for permanent residence used to take between 30 and 90 days, his company?s records now show that several applications submitted between six and 39 months ago have not yet been finalised.

Global Migration noticed that the flow of finalised applications had been slow recently, as it usually follows up on such applications with Home Affairs every two to four weeks. "As there was no question of the relevant candidates not being entitled to apply, I e-mailed the Director-General at Home Affairs in Pretoria to query the long delay, which is both unacceptable and unlawful,' Isaacson says.

When Home Affairs replied that it was urgently working on the problem - a standard answer that Global Migration had heard for many months with no great signs of progress - Isaacson asked other local immigration practitioners through an informal forum operating in the Western Cape, where his company?s head office is based, to indicate how many of their permanent residence applicants were in a similar situation.

The total number was about 500 in the Western Cape region alone. "Word on the street is that the backlog nationally could be as large as 20 000 to 30 000 applications, that Home Affairs does not have the staff to deal with these applications and that permanent residence applications are not currently taking priority because of other urgent issues,' says Isaacson.

Immigrants are entitled to apply for permanent residence once they have completed the requisite five years of work in South Africa, or when issued with business , exceptional skills or retirement permits which allow them to apply immediately for direct residence.

Unwarranted delays in granting skilled people permanent residence status can have serious consequences not only for the individuals involved, but also for the South African business community and the country, he says.

Isaacson points out that people at all levels, from skilled, mid-level workers through to the CEOs of big companies, are being affected. "For example, a top-level scientist currently employed by one of our clients, a major engineering and petrol company, is threatening to leave the company and the country if his permanent residence status is not sorted out. His perception is that his skills are not wanted here because of the length of time his application is taking to process.'

He says foreigners offered long-term employment often want to stay in the country to continue their work and contribute towards the South African economy, but the bureaucracy does not facilitate matters in this regard. "As a result, applicants suffer a high level of inconvenience and prejudice in their everyday lives when there is a delay in changing their status from temporary to permanent residents, not to mention the insecurity of going through an unreliable process.'

Delays can impact on foreign workers? tax status, both in South Africa and their home countries, as well as on their banking and other financial arrangements, he says. For example, they have to pay foreign student fees for their children studying in South Africa because they are not registered as permanent residents.

They also face problems when their driver?s licences expire, as the traffic department wants to see proof of permanent residence before it will convert a driver?s license issued elsewhere.

In addition there are high costs involved. "If an applicant?s temporary residence permit expires before a permanent one is issued, that person has to apply for further temporary permits for his whole family to remain legally in South Africa, while waiting for the permanent residence application to be attended to,' Isaacson says. "This is time-consuming and expensive, and sometimes disrupts employment, business trips and projects.'

After several unsuccessful meetings with Home Affairs in the past to try and speed up permanent residence applications, Global Migration has decided, at the request of its clients, to seek the intervention of the courts in a class action to try and resolve this issue.

Two notable actions taken against Home Affairs in the past were resolved in favour of the public: one forcing the refugee department to register refugees who had been in queues for months, and another revolving around a decision about foreign life partners.

Isaacson believes there is neither room for excuses like a lack of capacity, understaffing, lost files and lost documents, nor time for meeting upon meeting with Home Affairs where no solutions are reached on the issue of permanent residence.

Global Migration has therefore engaged senior legal advisors who will file an application for an urgent court hearing. "If the case goes onto the routine court rolls it may be 12 months before a court date can be obtained, so any sense of urgency will fall away, and permanent residence applicants will in the meantime continue to be subjected to an unacceptable situation caused by the administration of a public entity,' he says.

Immigration practitioners, employers or individual applicants around the country who would like to join in the class action lawsuit, which will focus specifically on the issue of permanent residence, should urgently phone Leon Isaacson on 021 4190934 or e-mail leon@globalimsa.com. The class action will be filed within the next two or three weeks.