Applying of a visa in South Africa has several challenges, but none is more common that not receiving a timeous response from the Department. Many applicants are kept at the pending status for many months and sometimes years with no end in sight. This has untold consequences for applications who are considered “legal ghosts” and like a ghost they are unable to interact with the society in the normal channels. Bank accounts are closed, jobs are lost and recently they are trapped in the country for fear of being declared undesirable if they ever attempt to leave the country on a pending status. The question on everyone mind is how long should an application take? And how can I get a decision quickly. We will answer these questions and shed light on what the legal position is in terms of acceptable waiting periods for outcomes on applications for permanent and temporary residence permits and visas respectively and what to do when no response is forthcoming.
According to the Department of Home Affairs, applications for Temporary residence take up to 6 -8 weeks to adjudicate and Permanent residence permit applications take up to 8 months to be finalised. It is not clear how this is computed however we do accept that these timelines are reasonable. However the Department is notorious for not sticking to its timelines and often applicants are left wondering when a result will be forthcoming. What is of greater concern is that no indication is ever given of how much longer is the application going to take, rather you have a seemingly endless pending status and no means to bring it to an end.
The Department of Home Affairs in performing its duties is bound by the Immigration Act and has to comply with the provisions of that Act. However no provision exists that governs how long an application for either Temporary or Permanent residence should take. Does this mean that it the applicant is at the mercy of the Departments inefficiencies? Fortunately the High court and other pieces of legislation have provided applicants with some relief.
In performing its duties the Department fulfils an administrative function and exercises administrative powers. Section 33 of the Constitution provides that everyone (including foreigners) has a right to administrative action that is lawful, reasonable and procedurally fair. The constitution goes on to provide that National legislation must be enacted to give effect to these rights and provide for the review of administrative action by a court , Impose a duty on the state to give effect to the rights contained in section 33 and to promote an efficient administration.
What the constitution provides for is an avenue to challenge any administrative action by an organ of state, in this instance, the Department of Home Affairs. Where your rights to fair, reasonable and lawful administrative action have been infringed by an administrative action you can approach the court to review such action and protect your right.
In the context of adjudication of permits the question arises, is a failure to make a decision on a pending application an administrative action that can be reviewed? The answer to this lies in another piece of legislation known as the Promotion of Administrative Justice Act (PAJA). PAJA defines administrative action as any decision taken or failure to take a decision by an organ of state when exercising a public power of performing a public function in terms of any legislation. Section 6(2)(g) of PAJA deals specifically with a failure to take a decision as a ground to approach the court to review such action or lack thereof. In addition Section 6(3) provides for what must be proven in those proceedings. The section provides for situations where an administrator had a duty to make a decision but no law provides for a time in which the Administrator has to make the decision and the administrator has failed to make a decision. This mirrors the exact situation as with an applicant waiting an outcome on his or her application and the Department fails to make the decision in a reasonable period.
The Court has dealt specifically with such a matter in the case of Eisenberg and Others v Director-General Home Affairs and Others 2012 (3) SA 508 (WCC) at paragraph 85 of the judgment Cloete AJ stated as follows:
The applicants have set out why 30 days is a reasonable deadline within which a temporary residence permit application should be finalised. The respondents concede that this is so…It is common sense that in the absence of such a duty, the Act would cease to have meaning. The respondents could, simply by refusing to take decisions, reduce the Act to an arbitrary and ineffective piece of legislation. This goes directly against the purpose of the Act itself as well as the principle of the rule of law enshrined in the Constitution. The respondents have simply failed to take the decisions required of them in a lawful, reasonable and procedurally fair manner.
In Addition the learned judge pointed out:
“For a foreigner in South Africa these permits are the single most important document they can possess. It is the basis of their legal existence in this country. Every aspect of their lives – the ability to travel freely (s 21 of the Constitution); the ability to work and put food on the table for their families (a component of the right to dignity in s 10 of the Constitution, see Minister of Home Affairs and Others v Watchenuka and Another 2004(4) SA 326 (SCA) at 339B-C and F-G, 340G); the ability to keep their children in school (ss 28 and 29 of the Constitution); and the basic right to liberty (s 21(1) of the Constitution) – is dependent on the physical possession of a valid permit.
The acquisition of a valid permit is the primary pre-requisite for any foreigner in South Africa and is thus a major stepping-stone to bringing tourists, skills, foreign investment and employment to this country.”
What I clear in from the preceding paragraphs is that waiting for extended periods for a visa and permit to be finalised is unlawful, unjust and procedurally unfair. Applicants have a right to have their applications finalised speedily. A temporary residence visa application must be finalised within 30 days failing which the department is acting unlawfully and must be challenged. It is unacceptable for a permanent residence permit to remain pending for more than 8 months. Applicants need not endure such lengthy waiting period. Given the serious impact on people’s lives the obligation to make a decision on application timeously is far greater.
Applicants whose applications have been pending for extended periods need not accept the status quo. One can get relief from our courts and bring an end to the untold suffering caused by being a legal ghost. Our Specialist Lawyers are on hand to assist anyone needing to expedite a pending application.