UPDATE FROM ADVOCACY ON DRAFT IMMIGRATION AMENDMENT ACT REGULATIONS

DHAThe Department of Home Affairs (DHA) has introduced new Draft Regulations for the Immigration Amendment Act of 2011 for public comment. Once the regulations are formally passed, the Immigration Amendment Act will enter into force. The regulations will affect foreign nationals already in the country and those who will be arriving in the future.

Some features of the proposed regulations are as follows:

  • Life partnership visa changes: individuals who are in a life partnership will now have to prove that their relationship has been ongoing for five years; the previous requirement was three months. For relationships that began in a foreign country, documentary proof from the authorities will be required. This requirement will make it extremely difficult, if not impossible, for some individuals to apply for this permit such as who have been in a homosexual relationship in country which bans homosexuality.
  • Asylum transit permit changes: the changes to the transit permit, which is issued to asylum seekers who express an intention to apply for asylum at border posts, gives immigration officials greater latitude regarding the issue of the permit and potential denial of the right to asylum. For example, the officials may deny asylum seekers entry if they ‘are a fugitive from justice’ or have already been granted refugee status in another country. In most instances, it will be difficult if not impossible for officials to accurately assess these criteria and some individuals may be considered ‘fugitives’ in their country of origin but those charges could be politically motivated and form a part of that individual’s valid asylum claim.
  • ‘Undesirable persons’ changes: a person who is deemed ‘undesirable’ by DHA for overstaying the expiry of their visa may be declared undesirable for a period of two to 10 years depending on how long the individual overstayed. Given the delays in visa application processing and lost applications, these changes have the potential to severely affect those individuals who have followed the required procedures.

The Immigration Amendment Act Draft Regulations were published for public comment in February 2014 and are not yet in force; it is not yet clear if DHA will adjust the regulations after receiving public comment. The Advocacy Programme submitted comments to DHA on the Draft Regulations and will follow developments and provide further information as it becomes available.

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