ViewCase Studies of Legal Interventions

 

IMMIGRATION LEGAL SERVICES

Immigration litigation & Legal Services

Legal Immigration Services will often call on its professional networks of South African immigration lawyers to assist those foreign persons who require elevated legal interventions.
  1. Challenges on lifting declaration of undesirability at international airports and ports of entry upon departure to return to South Africa
  2. Advices and Preparation of Appeals against refusals by Home Affairs on temporary and/or permanent residence applications
  3. Court litigation and interventions to finalise and expedite delayed visa or permanent residence applications and outcomes
  4. Court litigation and interventions to finalise and expedite delayed Appeals against refusals of visa or permanent residence applications
  5. Attendances on Home Affairs on Good Cause Applications upon overstays, immigration detention and deportation proceedings
  6. Magistrate’s Court attendances on being charged under the immigration laws and Bail Proceedings
  7. High Court Judicial Review Applications to set aside Home Affairs’ decision-making against temporary and permanent residence refusals following Appeals
  8. Constitutional litigation and challenge to unconstitutional immigration laws

 

Challenges on lifting declaration of undesirability at international airports and ports of entry upon departure to return to South Africa

The Department of Home Affairs in its wisdom changed the immigration laws formally on the 26th of May 2014 and it made sweeping changes to visa and permit requirements and significantly introduced highly

 

Challenges and Representations on Immigration Appeals against refusals of visas and permanent residence permits

The Department of Home Affairs has been refusing greater volumes of visa and permanent residence permit applications over the last two years than in its last ten years of operation.

Many of the refusals are without legal substance and unlawful (often simply edited refusal letters without direct relevance to the application submitted). To the recipient of a refused application it can be a daunting prospect receiving a refused application. It does not mean that if you are refused such refusal is correct in law and may well be overturned on appeal.

At Legal Immigration Services we are often called up and mandated by foreigners who have received refusals to advise them of their rights.

This is a technical exercise and requires the legal ability to appreciate the constructs, 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 Department of Home Affairs on the ‘back foot’ so to speak to substantiate their decision. This is often where the refusal is overturned and our clients’ receive their visas or residence permits.

 

Court Litigation – High Court Interventions to expedite delays and refusals

With the formal appeal process and general delays by the Department of Home Affairs in the adjudication and finalisation of temporary or permanent residence applications, and or appeals, there is a general frustration by foreign applicants in resolving long-awaited decisions.

At Legal Immigration Services we are highly adept and vigorous in our challenges to the Department in finalising long outstanding delays.

We are briefed throughout South Africa and abroad literally everyday by foreign people who are aggrieved by unwanted delays and outstanding appeals whether through Pretoria or the South African offices abroad, to provide relief to those frustrated applicants who feel helpless in waiting for adjudication.

Our preferred immigration lawyers 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.

 

Challenges and Representations on Immigration Appeals against the Declaration of Undesirability and Disqualification to return to South Africa for a defined period

In terms of the new immigration laws, any foreigner who departs South Africa with an expired visa will be declared undesirable. It matters not if the foreigner had legitimate grounds causing the overstay or not – the imposition of a ban by the immigration officer at the airports or order posts is obligatory. This is still on our agenda to overturn this practice. See Johnson and Others versus Minister of Home Affairs.

This practice has also created much fear in the minds of those foreigners departing South Africa who may have overstayed no matter what led to the overstay. This is in our view unconstitutional.

What makes matters worse is that the law will disqualify the foreigner who is banned from one year to five years depending on the length of the overstay. The consequences of such ban may impact on marital partners, minor children, persons with property in South Africa and of course a mark against one’s name by being refused return which may present difficulties in other travel aspirations to other destinations.

At Legal Immigration Services and our lawyers we regularly act in the interests of the foreign persons to overturn the ban or disqualification and will consult and advise our clients to remove or lift such ban. Previously, one of our lawyers, was very successful in this regard and are responsible for bringing this matter before the Constitutional Court in Johnson & Others versus Minister of Home Affairs.

 

Immigration Legalisation overstays, Deportation and Detention interventions – attend on Home Affairs and Magistrates Courts

The current enforcement climate is rife with the Department of Home Affairs seeking to arbitrarily and unlawfully, arrest or order foreigners to depart whose status may be in dispute.

We are often called upon to assist in overstay matters where the foreigner may have overstayed his or her visa for some reason and we will assist in the attendances to remedy this issue to allow the foreigner relief to remain in South Africa.

Then there are more serious matters in terms of section 34 of the Immigration Act 13 of 2002, as amended, where any arrested and detained foreigner person would have the right to be brought to the Magistrate’s Court where the arrest took place and review the lawfulness of the manner in which the entry, search, interrogation, arrest and detention was conducted. Our intervention will often result in the release of the detained foreigner.

Legal Immigration Services are the undoubted leaders in the attendances on the deprivation of liberty involving detention and deportation matters.

Our instructed immigration lawyers regularly appear in such court proceedings and continue to be the ‘go-to’ law firm in these review proceedings to allow for the immediate release of the detained foreign person.

 

Immigration Refusals to Enter and Detentions at South African International Airports

The Department of Home Affairs, through its Inspectorate, is always on the lookout to refuse entry to a foreigner based on grounds that his or her status is invalid or illegal.

At Legal Immigration Services we are engaged by family or interested parties to approach the Department and put such immigration officials on risk of potential unlawful conduct.

We would make urgent representations to the Minister of Home Affairs to stay removal proceedings and possibly approach the High Court to grant the right of such foreigner to enter South Africa upon review of the decision by the immigration officer.

In many cases the immigration officer fails to follow procedures and respect substantive rights, which would render the refusal unlawful and thus grant the right to enter South Africa.

 

Magistrates Court litigation on criminal detention and charges relating to immigration laws

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 said Department will 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.

Our immigration lawyers who are briefed are called upon to secure the release of the accused person and uphold their rights in any criminal proceedings.

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.

We 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.