Updates to the South African immigration sphere, including the new visa concession, continued backlog worries, and the extension of the validity of Zimbabwean Exemption permits have left many businesses and foreign nationals uncertain about how best to navigate the visa application process. 

Considering this, Standard Bank held an exclusive, virtual conversation with Marisa Jacobs (Managing Director at Xpatweb) and Michelle Munemo (Head of International Diaspora Clients at Standard Bank of South Africa) for their clients on 21 June 2023. The session provided in-depth insights on the:  

1. Available options for those awaiting application outcomes; 
2. Implications of the extension issued by the Department of Home Affairs on pending applications; 
3. Update on Zimbabwean Exemption Permits (ZEP); and 
4. Various strategies one can consider, including a legal approach.  

Munemo noted that the status of ZEPs remains a hot topic, especially with the Department extending their validity to 31 December 2023. However, attendees found the avenue of litigation particularly interesting, asking several questions on the matter, specifically how one can approach the legal escalation process. 

Backlog Woes and the Legal Escalation Process 

The first part of the webinar dealt with the Visa application backlog within the Department of Home Affairs (DHA) and how it has evolved. Jacobs touched on the withdrawal of the centralised adjudication system in 2022, which is the cause of the current backlog, and the measures the DHA has implemented to curb this issue. 

These include the various concessions extending the validity of qualifying visa applications, appointing more Department resources, and easing Visa requirements. Whilst the DHA remains confident that these measures will assist in clearing the backlog by mid-2024, Jacobs did highlight that this might not be possible. 

From this, Jacobs unpacked how one can navigate these backlog challenges and manage long overdue applications, which includes following a legal escalation process. As many attendees were unaware that litigation is a viable route for expediting applicable visa applications, several queries sprung up during this section. So much so, Munemo decided to pause and hold a Q&A session so Jacobs could answer these burning questions.  

She then highlighted what the process may look like, stating that the DHA could approve a pending application at various stages during the legal escalation steps – 

• Sheriff approach to give matter attention. 
• Legal step as a follow-through. 
• Approaching the High Court that accepts applications marked as “URGENT” where facts support the application.

From there, Jacobs unpacked examples of High Court orders that Xpatweb has successfully obtained. 

The next section covered the challenges with VFS and certain Embassies, along with the high volume of rejections. These challenges can be overcome by a sound appeal strategy and application roadmap which includes a “Litigation Ready” appeal and application. 

The ZEP Extension, Ongoing Court Cases, and the Path to Permanent Residency 

The second part of the session focused on ZEP holders, the ongoing court cases against the termination of the ZEP permit, and the recent extension announcement by the DHA. 

ZEP holders now have until 31 December 2023 to apply for a mainstream visa or special application. The welcomed extension has left many ZEP holders wondering whether they should await an outcome of the ongoing court cases. Jacobs highlighted though, that regardless of who wins or loses these cases, an appeal is likely and as such certainty is not guaranteed with the outcome. 

Further, she noted that getting a Mainstream Visa places Zimbabwean nationals on a direct path to gaining South African residency, something that ZEP holders should continue to consider. 

From there, Jacobs shared several recommendations to employers of ZEP holders on how best to manage the current circumstances. These include ensuring their employees are on a valid ZEP permit or refugee or asylum permit and being well prepared for audits and the entire Mainstream Visa application process. 

Jacobs emphasised that ZEP holders should continue to apply for alternative mainstream visa categories, such as Critical Skills and General Work visas.

The Court Judgements and Appeal

Since the webinar, the future of ZEP holders has changed yet again. On 28 June 2023, the Gauteng High Court in Pretoria declared the decision to terminate the Zimbabwean Exemption Permit (ZEP) programme unlawful, unconstitutional, and invalid. 

The Court has ordered that the decision to terminate the ZEP be remitted back to the Minster for reconsideration, “following a fair process that complies with the requirements of Sections 3 and 4 of the Promotion of Administration Justice Act 3 of 2000 (PAJA).” Further, they ruled that Minster is liable for the cost of the application. 

Now, the Minster has 12 months for re-evaluation, and pending a fair outcome, existing ZEP holders will “continue to enjoy the [previous] protections,” such as – 

• No holder may be arrested, ordered to depart, or be detained for purposes of deportation;
• The holder may be allowed to enter or depart South Africa; and 
• No holder is required to produce a valid exemption certificate and an authorisation letter to remain in the country. 

As suspected by analysts and Jacobs, the Minister released a statement on Thursday, 29 June 2023, stating that “the two judgments cannot go unchallenged as they set a dangerous precedent.” He has already launched an application for leave to appeal. 

The statement goes on to say that the findings are “highly questionable” and involves “matters relating to a sacrosanct principle of separation of powers” – both of which are strong grounds for an appeal. 

The Path Forward

The outcome of the ZEP court cases, and the subsequent appeal, only highlight the challenges one faces when navigating the ever-changing South African immigration landscape. 

Jacobs appropriately closed her presentation by highlighting the need for a strict submission strategy and application roadmap. She encouraged all applicants and businesses to be fully prepared for the entire visa application process, including the possibility of taking the legal escalation route for an expedited outcome. 

For greater success for these visa submissions, and to follow the route of legal escalation, it is best to consult with immigration experts, as they understand the complexities of the visa application process, and deal with the DHA daily, along with the intricacies of escalating a visa application. 

Please feel free to reach out to Xpatweb at standardbank@xpatweb.com for assistance.