GroundUp (Cape Town)

7 July 2014

South Africa: 'Incomprehensible' That Home Affairs Declared 5-Year-Old Undesirable

A recent wave of litigation against Home Affairs following the unheralded implementation of new immigration regulations on 26 May 2014 continued on Friday in Western Cape High Court.

This time, immigration attorney Craig Smith represented the five-year-old daughter of South African permanent residents Robert and Lindy Steele. Home Affairs declared the Steele's daughter "undesirable" on her way out of the country on 24 June 2014 as she was travelling with her family to Turkey.

Friday's presiding judge, Justice Gamble, called the declaration "incomprehensible". Gamble said, "It's one thing for an exotic dancer to be caught up like this, but it's another thing for a 5-year-old."

Though short-term relief by the court allowed the Steeles to successfully return to Johannesburg last night, the long-term status of their daughter remains to be seen. Part B of their court application argues that the new immigration regulations are unconstitutional and asks that the young Steele's status of undesirability be revoked. This is scheduled to appear before the High Court on or around 26 August 2014.

The outcome will be one with widespread implications. Under Regulation 27 of the new immigration laws, thousands of other visa overstayers face being declared "undesirable" and having their rights to reenter South Africa in case of departure suspended.

Particularly in combination with the fresh stipulation that new visas must be applied for from one's home country, these laws are quickly rendering legal recourse the only - albeit often unaffordable - option for many. Smith told GroundUp that the Steeles' application will probably be consolidated with countless others across the country.

Friday's court appearance follows Judge James Yekiso's landmark ruling in favor of Brent Johnson and Cherene Delorie on 1 July in the Western Cape High Court. Yekiso ruled that Johnson and Delorie, both South African citizens whose foreign spouses had been declared "undesirable" and barred from re-entering South Africa after overstaying their visas, were not a threat to national security and had "plainly suffered prejudice."

Delorie's husband, Zimbabwean citizen David Henderson, and Johnson's Danish wife Louise Henriksen Egedal-Johnson, were, like Steele, granted short-term relief and allowed to rejoin their families in South Africa.

"These laws are affecting the wrong people," Smith said of both cases, arguing that Home Affairs' energy would be better concentrated on border posts. Home Affairs has responded by calling the applications "premature," arguing that they "did not allow internal processes to take their natural course."

"We ask only for the opportunity to respond reasonably," said Home Affairs' legal representative in the Johnson case. But over 1,000 immigrants filed an urgent application to the Western Cape High Court last week, insisting that their permit applications be processed.

At a business briefing hosted by The New Age and Transnet on Friday, Home Affairs Minister Malusi Gigaba said that his department has plans to appeal the Johnson ruling.

Though frustrated by the prospect of "another case where we have to seek relief from the court rather than internal relief," Smith urges others affected by the new immigration laws to "be vigilant and persevere."

"Had the department properly applied its mind when making these new laws or considering these applications," he said, "this could all have been avoided."

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